Administrative procedure changes advanced

State agencies would have more direction and clarity regarding the promulgation of rules and regulations under a bill advanced from general file March 8.

The Legislative Performance Audit Committee introduced LB867. Syracuse Sen. Dan Watermeier, chairperson of the committee, said the proposal was the result of a 2015 performance audit of the Administrative Procedure Act (APA), which found that current language in state law gives inadequate guidance to agencies and does not reflect best practices.

Among other provisions, the bill would amend the definition of rule or regulation and identify three types of agency documents that are not rules:
• internal procedural documents used to guide agency staff on organization and operations;
• guidance documents; and
• forms and instructions.

The bill also would exempt style, format and citation changes from public notice and hearing requirements. Security policies and procedures that, if released, would endanger public safety also would be exempted.

“While LB867 changes the language of what a rule is,” Watermeier said, “it does not change the intent behind the original rule definition.”

The bill also would create short-term emergency rules, which can be adopted outside of normal APA procedures. An emergency rule would require approval of the governor and would remain in effect for 90 days. An emergency rule could be made permanent only through the full promulgation process.

A Government, Military and Veterans Affairs Committee amendment, adopted 29-0, would limit the factors that an agency could consider in determining whether emergency rulemaking is necessary to imminent peril to public health, safety or welfare or the unforeseen loss of federal funding for an agency program.

Rules and regulations made under the emergency rulemaking procedures would be filed with the secretary of state’s office and published on the agency’s website.

The amendment also clarifies that exemptions to the formal rulemaking requirements outlined in the bill could not be used if a change would alter the rights or obligations of the public.

Watermeier offered an amendment, adopted 30-0, which removed a requirement that the governor review emergency rules. He said the requirement could greatly slow down the sort of action that would need to be taken in an emergency situation.

The bill also adds language that would require state Department of Correctional Services’ regulations for circumstances in which an inmate is outside of a correctional facility.

Omaha Sen. Heath Mello supported the bill and committee amendment. Changes are necessary in some state agencies—particularly the state Department of Correctional Services—he said, which have relied on internal memos rather than the APA process to authorize some programs.

Mello cited an inmate driving program that resulted in the death of a Lincoln woman when her vehicle was hit by one driven by an inmate.

“None of us really knew [that] program existed,” he said. “It became very apparent that the [department] did not go through the Administrative Procedures Act for most of their operational rules and regulations.”

Sen. Sue Crawford of Bellevue also supported the bill, saying the rules and regulations process allows for important public input on state agency policies that impact citizens’ rights. Policies that have the force of law need to go through a formal process, she said.

“This administrative procedures process is a key part of how we are able to shape what government does,” Crawford said.